If a person loses mental capacity, and there is no valid Lasting Power of Attorney in place at the time, an application to the Court of Protection for Deputyship may be required.
What does the Court of Protection do?
The Court of Protection exists to safeguard vulnerable people who lack the mental capacity to make decisions for themselves regarding their finances or health and welfare. The Court of Protection can appoint a Deputy to make ongoing decisions or make one-off decisions through a court order.
Deciding on Mental Capacity
The Mental Capacity Act deals with the Court of Protection, Deputies and Lasting Powers of Attorney. Capacity is task-specific, which means that whilst a person may lack capacity to make certain decisions, such as managing their finances, they may still have capacity to make others, such as making a purchase in a shop.
People may lack mental capacity for a variety of reasons, such as a serious brain injury, severe learning disabilities, a stroke, dementia, or external factors such as alcohol or drug use.
The Mental Capacity Act defines exactly what ‘lack of capacity’ means. Deciding mental capacity involves a four-part functional test:
- Understanding the information: Can the person understand the information relevant to a decision, including the consequences of making or not making it?
- Retaining the information: Can a person hold that information in their mind long enough to make the decision?
- Using and weighing information: Can a person use or weigh the information as part of the decision-making process?
- Communicating their decision: Can a person communicate their decision in any way, including by talking, signing, gestures, or even blinking?
Whilst a solicitor may assess capacity for legal matters, a Mental Capacity Assessment for the Court of Protection must be completed by a qualified and experienced medical practitioner or social care professional. The Court of Protection will only approve an application to become a Deputy if it agrees with the assessment.
What is a Deputyship order?
If the Court of Protection makes a Deputyship Order, it will set out the Deputy’s specific powers, and there remains an ongoing duty for the Deputy to assess whether the person has the capacity to make each separate decision as it arises.
There are two types of Deputyship Order:
- Property and financial affairs. To make an application to the Court of Protection for property and financial affairs, you must prepare a detailed application which confirms the financial position for the person involved, commission a medical report to assess capacity, and ask the Court to appoint a Deputy to manage their property and financial affairs on an ongoing basis.
- Health and welfare decisions. Most health and welfare applications relate to one-off decisions, such as where someone should live or a specific type of medical treatment. It is possible to apply to the Court for permission to make decisions about health and welfare on an ongoing basis, but such applications are complex and rarely approved by the Court.
The Court can also make urgent interim orders in situations where there is an immediate risk to a person who lacks capacity.
How long does it take to appoint a Deputy?
It typically takes 4 to 6 months to get a Deputyship in place, although the process can take longer if there are complications or objections. The Court of Protection is also currently experiencing severe delays, which can make some applications take as long as 12 months.
The application process itself is detailed and complex, and it will take time to receive the Mental Capacity Assessment and answer any queries from the Court of Protection. The overall complexity of the individual’s financial and personal circumstances can also influence the processing time.
In situations where there is an immediate risk to the person who lacks capacity, the Court of Protection can expedite matters by making an urgent interim order.
What does a Deputy do?
The Court of Protection can appoint anyone over the age of 18 with mental capacity as a Deputy (e.g. a family member or a professional, such as a solicitor) to manage an individual’s ongoing financial affairs, property, or health and welfare. This appointment need not be permanent, and the Deputyship can last only as long as a person lacks mental capacity if their condition improves.
Activities a Deputy may carry out include managing bank accounts, investments, benefits, tax affairs, and decisions about medical treatment, living arrangements, and daily welfare. The remit of a Deputy will be as specified in the court order.
The Court of Protection requires stringent compliance by a Deputy with the administrative standards set by the Court. The Deputy must always act in the ‘best interests’ of the person who lacks mental capacity, meaning where possible they should involve the person in the decision-making process as much as possible and take into consideration their past and present wishes and beliefs, including consulting with family members, friends, and carers.
Supervision of Deputies by the Office of the Public Guardian
Deputies must ensure transparency in their actions and decisions and are supervised by the Office of the Public Guardian, an agency of the Ministry of Justice in England and Wales.
An appointed Deputy must keep meticulous records of all decisions and actions taken on behalf of the person who lacks mental capacity and submit this information as an annual report to the Office of the Public Guardian. The Office of the Public Guardian will carefully review this report, may ask questions or request further information, and will investigate if there are concerns about the Deputy’s actions. The Court has the power to end a Deputyship or replace a Deputy.
Are there costs associated with a Deputyship?
There are several costs associated with a Deputyship:
- An initial application fee of £421.
- An assessment fee of £100 for new deputies.
- An annual supervision fee paid to the Office of the Public Guardian of either £320 (general) or £35 for minimal supervision (for those managing less than £21,000).
- A security bond will be required, and this will have an annual fee. This is a type of insurance that protects the finances of the person you’re a Deputy for. The amount depends on the value of the person’s estate and the level of responsibility.
- The cost of a medical assessment for Mental Capacity, which can vary.
- If a court decides a hearing is necessary, there is an additional £ £259 fee.
How is a Deputyship different from a Power of Attorney?
Whilst both a Lasting Power of Attorney (LPA) and Deputyship involve making decisions on behalf of someone who cannot do so themselves, the main difference is in how and when they are set up.
An LPA is set up in advance whilst a person still has mental capacity, and they are included in deciding who will be their attorneys and what powers they will or will not have. The LPA will then take effect if/when the person loses capacity, possibly from an illness, accident, or injury, or if they wish their attorney to take over some responsibilities.
A Deputyship is used when the person has already lost capacity and does not have an LPA in place.
How THP solicitors can help with a Court of Protection Application and ongoing Deputyship?
THP Solicitors’ Court of Protection specialists can help you if you need to make a Deputyship Application to the Court of Protection, including its preparation, progression, issue at Court, and ensure that the people who must be notified about the application are told in good time.
We can assist Deputies with ongoing compliance, the preparation and submission of the annual return, and the maintenance of the Deputy’s security bond.
We can also assist existing deputies with applications to the Court for permission to make gifts, statutory Will applications, permission to buy and/or sell property, Inheritance Tax planning, and applications for a Deputy to retire.
Contact our Wills, Trusts & Estate Administration team in Lower Earley, Reading on T: 0118 975 6622 or Henley-on-Thames on T: 01491 570 900.